SMITH, J., Concurring.
I concur in the judgment of affirmance. The appeal before us is from an order denying the defendant’s motion for a new trial, and the questions to be considered are those only relating to appeals of this kind, which, in the present .case, are confined to the alleged insufficiency of the evidence, and the point that the decision is against law.
The findings attacked for insufficiency of the evidence to support them are, in effect: (1) That the Ventura lodge is a charitable institution and its funds devoted exclusively to charity; (2) that the lodge is competent under the laws of the state of California to receive bequests of real and personal property; (3) that a thousand dollars was “segregated” by Gries for the purpose of complying with the provisions of the will out of the rents and profits of the lands devised to him, and that this sum has come into the hands of his administrator; and (4) that the claim of the lodge was presented to the administrator of the estate of Gries in the manner required by the provisions of section 1502 of the Code of Civil Procedure.
Of these findings, the first is clearly not supported by the evidence; for it appears, without contradiction, that the funds of the lodge are for the exclusive uses of a definite number of members, and that the lodge does not dispense charity to
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outsiders. The association, therefore, in this regard, differs in no essential respect from an ordinary partnership, or other mutual benefit society; and hence, it cannot be regarded as a charitable institution or institution existing for charitable purposes, in the technical sense of the term. (2 Story’s Equity Jurisprudence, 1156 et seq.; 2 Pomeroy’s Equity Jurisprudence, secs. 1019, 1022;
People
v. Cogswell, 113 Cal. 129, 136, 137, [45 Pac. 270];
Gorman
v.
Russell,
14 Cal. 535; 1 Bacon on Benefit Societies, sec. 44.)
The second of the findings attacked is a mere conclusion of law, and will be correct or otherwise accordingly as we construe it. If it be construed as meaning that an unincorporated institution, such as the Ventura lodge, can take property in trust or otherwise, as a corporation or quasi-corporation distinct from its membership, or hold it as the representative of its fluctuating membership, the proposition cannot be admitted.
(Blakeslee
v.
Hall,
94 Cal. 159, [29 Pac. 623].) But if it be construed as meaning no more than that the existing members of the association can take under the common name, it cannot be disputed.
(Grand Grove
v.
Garibaldi Grove,
130 Cal. 119, [80 Am. St. Rep. 80, 62 Pac. 486].) In the present case, as will be seen, the proposition is asserted in the latter sense and no objection can be urged to it.
As to the finding of the segregation of a thousand dollars by Cries, there is no evidence in the record to support it. But the finding is obviously immaterial, unless in connection with the fourth of the findings objected to; which is in effect that the claim of the Ventura lodge was duly presented to the administrator of Cries’ estate; nor in connection with this do we think it is of any materiality. The specific point of objection to the last finding is that the claim was not presented within the statutory time after the publication of notice to creditors required by section 1493 of the Code of Civil Procedure; and as this point is not disposed of by the findings, it may be assumed that the court intended to hold that, under the provisions of section 1502 of .the Code of Civil Procedure, all that was required was that the claim should be presented before a recovery could be had. But assuming, for the purposes of the decision only, that the court was wrong in this view, the error is in this case quite immaterial; for here the claim of the lodge is to a definite fund created by the terms
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of the will and the decree of distribution, and charged upon the real estate allotted to the defendant Gries; which must be regarded in a court of equity as an interest in or lien upon specific property. (Code Civ. Proc., secs. 1505, 1686.) It is, therefore, not a claim against the estate in the sense of the term as used in section 1493.
There remains to be considered, therefore, only the objection that the decision of the court is against law, which will require a consideration of the effect of the provisions of the will and of the decree of distribution.
With regard to the former, were the subject before us an original question, I would perhaps have no difficulty in allowing the contentions of the appellants, which are: (1) That it was the intention of the testatrix that the transfer of the thousand dollar fund provided for to the Ventura lodge should be upon the trust that it should be maintained by it as a permanent fund and the income used for the care of the grave of the testatrix, with resulting trust to the successor of the testatrix of so much of the fund as should not be required for this purpose (Civ. Code, sec. 866; 2 Story’s Equity Jurisprudence, 1196, 1196a; 2 Spence’s Equity Jurisprudence, 22, 223, 224); (2) that it was not intended to confer any interest, beneficial or fiduciary, upon the several members of the lodge, but that the transfer was to be made to the lodge as a quasi-corporation; and (3) that the trust thus created was void for the double reason: first, that it was in contravention of section 9, article XX of the constitution relating to perpetuities
(Estate of Gay,
138 Cal. 553, [94 Am. St. Rep. 70, 71 Pac. 707]; 2 Story’s Equity Jurisprudence, 1156 Ct seq.; 2 Pomeroy’s Equity Jurisprudence, secs. 1019, 1022;
People v. Cogswell,
113 Cal. 129, 136, 137, [45 Pac. 270] ; 1 Bacon on Benefit Societies, sec. 44), and of sections 847 and 857, subdivision 3, of the Civil Code, relating to uses and trusts; and secondly, because the lodge was not a person competent to take as trustee
(Estate of Winchester,
133 Cal. 275, [65 Pac. 475];
Estate of Upham,
127 Cal. 95, [59 Pac. 315];
Blakeslee
v.
Hall,
94 Cal. 159, [29 Pac. 623].) But here the will has been, as it were, merged in the decree of distribution, which is to be taken as conclusive of the rights of all parties entitled, legally or equitably, to a share of the
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estate (Code Civ. Proc., secs. 1665, 1666), and the case must' therefore turn upon the construction and effect of this decree.
As to this, it may be, and in effect is, contended by the appellant that the person or supposed person named in the decree as distributee, i. e., the Ventura lodge, is not a person competent to take as trustee, or otherwise, and that this is equally fatal to the validity of the decree as to that of the bequest. But this contention is based upon the assumption that it was the intention of the decree to direct the transfer to be made to the Ventura lodge as a quasi-corporation, and that it was not its intention that the individual members of the lodge should take any interest. But we find nothing in the terms of the decree to justify this assumption. All that is said is that the thousand dollar fund shall be transferred to the lodge upon the execution of the contract specified ; and to give effect to the decree we must suppose that the term “lodge” is used simply as the co.mmon name of the members; so that, in effect, the order is, that the transfer be made under the common name to the members of the lodge jointly
(Grand Grove
v.
Garibaldi Grove,
130 Cal. 119, [80 Am. St. Rep. 80, 62 Pac. 486];
Gorman
v.
Russell,
14 Cal. 535). Upon any other construction, the decree would-be defective in failing to designate any person or persons entitled to share in the estate, which it was essential to the jurisdiction of the court and to the validity of the decree should appear. For under the express provisions of the statute, the jurisdiction of the superior court in distributing the estates of deceased persons extends only to the determination of the persons entitled to distribution; and to give effect to any provision of the decree the designation of such person is essential. - In the present ease, the lands in question were allotted by the decree to Cries, and, upon the hypothesis we are now considering,' without the designation of any other person or persons competent to take as entitled to an interest therein; and upon this hypothessis the directions to Cries as to the disposition of the rents and profits of his lands would be clearly nugatory. We have no alternative, therefore, other than to construe the decree as requiring the transfer of the fund to the members of the lodge jointly under the common name.
Whether it was the intention of the decree that the fund when thus transferred was to be held by the donees in trust
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for the purpose named in the will, either wholly or in part, is not expressly determined by the decree; but the contrary, we think, is to be inferred. For otherwise • the effect of the decree would be to create a perpetuity in contravention of the constitutional provision, which it is not to be presumed was the intention of the court. The decree must, therefore, be construed as directing an absolute transfer of the fund to the lodge, or rather, under its name, to the members of the lodge, thus leaving in Gries, the owner of the land, no right in the fund, or in its disposition, but merely a right of action for any breach of the contract that might occur.
The judgment in the case before us conforms precisely to the decree of distribution as thus construed and must be construed in the same way, i. e., as directing the fund to be transferred absolutely to the San Buena Ventura Lodge, etc., upon the execution of the contract called for. This is to be understood as directing a conveyance under the common name to the associated members as existing at the date of the decree; and it must be assumed in support of the judgment, either that these were the same members as those existing at the date of the death of the testatrix and at the date of the decree of distribution, or that under the constitution and by-laws of the lodge the present had succeeded to the rights of the former members.
(Grand Grove
v.
Garibaldi Grove,
130 Cal. 119, [80 Am. St. Rep. 80, 62 Pac. 486].)
Thus far, the judgment conforms to the decree of distribution, and the decision is, therefore, not against law. The judgment, indeed, might have gone further and placed some conditions or restrictions upon the lodge with reference to the use and disposition of the fund. But as there is no appeal from the judgment, the questions thus suggested cannot be considered.
I am of the opinion, therefore, for the reasons given, that the order appealed from should be affirmed.